Can convicted persons contest elections?

ARE THE convicted persons disqualified from contesting elections? My view is that they are not.

The Criminal Procedure Code does not create any disqualification due to conviction and sentence of imprisonment. (It is only under other enactments such as dismissal of government servants, it is considered). Hence disqualification may be quasi-civil, or quasi- criminal or under the Constitution or under other enactments which are to be within constitutional validity.

If this matter is looked at from a different angle one could see that S.389 Cr.P.C. and S.482 Cr.P.C. alone are not attracted even though they are the often quoted sections in articles relating to this subject.

If a person is convicted and sentenced, not on the basis of plea of admission of guilt, but after a trial, challenging all issues, then the effect of an appeal is important.

Chapter XXIX (29) deals with the provisions relating to appeals against the judgment or order of the trial court. There are different sections under which an appeal can be filed. S.389 Cr.P.C. is not one such section.

S.389 Cr.P.C. gives power to the appellate court under some circumstances, to release on bail when a man is in jail, after the appeal is admitted and pending. It is only a consequence of admission of the appeal. It is not only to order the release of a person, but also to keep a person in jail, in spite of an appeal being admitted and pending.

Two important sections in this chapter are S.374 and S.384 - under S.384, the court can dismiss the appeal, without even giving notice or hearing the other side. If it is not done then the appeal is U/S.374 Cr.P.C. The power of the appellate court to deal with the appeal is governed by S.386.

Even if there is no sentence of imprisonment (then S.389 has no application to release) or if the sentence was already undergone, or set off U/S.428 Cr.P.C., the appellant can challenge his conviction. This is to erase the stigma resulting from the conviction. (1977(1)SCC 742).

``It must be realised that in a criminal case the accused has only one right of appeal and that should not be denied to him where arguable questions of fact are involved'' (1979(4)SCC 600 & 602).

Appellate imperative

In 1978(3)SCC 544, Justice Krishna Iyer (and 2 other judges) has observed as follows:

``One component of fair procedure is natural justice. Generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilised jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on a collegiate basis. In short, a first appeal from the Sessions Court to the High Court, as provided in the Criminal Procedure Code, manifests this value upheld in Article 21 of the Constitution. What follows from this appellate imperative? Every step that makes the right of appeal fruitful is obligatory and every action or inaction which stultifies it is unfair and ergo, unconstitutional.''

In 1986 SCC Supplement Page 401, though it refers to civil matter the observation made therein is that ``An appeal is not a fresh proceeding but merely a continuation of the original proceeding.'' This must be the same to criminal cases also.

In 1961 MLJ.Crl.180 (the bench decision of the Madras High Court - one of them being Justice Kailasam), the court has observed while dealing with Article 311 of the Constitution in respect of dismissal of a person on the basis of `leading to conviction' by trial court, ``the proceedings forming the subject-matter of a criminal charge against a person from the primary court of trial to the ultimate court of final appeal or revision really constitute one proceeding and however varying the fortunes of the person indicated may be, the proceeding can always have only one result, and that is the result of the last proceeding which becomes indefeasibly final.''

The court agreed with the view rendered by the Allahabad High Court, which has observed: ``A proceeding will not be said to have led to his conviction if it has not resulted ultimately in conviction or as a consequence of appeal, has failed in an acquittal. Appeal is a continuation of the proceedings commenced on the criminal charge and it does not conclude in a conviction where an appeal is preferred against the order of the trial court or of any subsequent court until the subsequent proceedings have finally ended''.

Hasty action

In 1974(4) SCC 396 - in a matter where the President has taken action on the basis of the conviction by the trial court, while the matter was pending in appeal before the Supreme Court, the Supreme Court on allowing the appeal and reversing the conviction has made an observation: ``Since an appeal against the conviction was preferred to this court, the President could have waited for the disposal of the appeal before taking any action against the appellant on the basis of the conviction.'' This means a hasty action on the basis of conviction when appeal is preferred and pending must be avoided.

In 1985 Crl.L.J. 584 (Patna Bench decision by Chief Justice and another), while interpreting Article 21 for speedy trial, it has been observed that, ``the Code confers a vested and substantive right of appeal in convictions on capital charges. Equally well- settled it is that such appeals are a re-hearing and re-appraisal of the evidence and the appellant is entitled to agitate all questions of fact and law, before a court of criminal appeal. It would thus be manifest that the nature of a criminal appeal under the Code - whether against conviction or directed against acquittal - is a re-hearing and a continuation of the trial. The appellate court is not merely a court of error and the moment the appeal is preferred, the finality of the judgment of the trial court disappears and the whole issue is in a flux afresh. Therefore, there seems to be no option, but to hold that the word `trial' in the context of the Constitution guarantee of a speedy trial includes within its sweep a substantive appeal provided by the Code to the High Court - whether against conviction or against acquittal.''

The court can convict a person only by recording findings against the accused. If those findings are challenged before the appellate court, then the question of conviction should not stand till the disposal of appeal. One appeal is the statutory right under the code.

The duty of the appellate court has been stated in 1996 Crl.L.J. 3491(SC Chief Justice and two other judges) that ``The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record.''

There are unreported decisions of the Madras High Court suspending the conviction. The well considered judgment in this aspect is the bench decision of the Andhra High Court by Justice Jayachandra Reddy and Justice Pandurenga Rao in 1990 Crl.L.J.167.

The Constitution Bench in Justice Veerasami's case (5 judges) has observed that, ``If he (refers to judge) is sentenced in a criminal case he should forthwith tender his resignation unless he obtains stay of his conviction and sentence.''

This means whatever may be the provisions of law, stay of conviction can be obtained and the courts have power to grant such orders. Otherwise in some cases the conviction recorded by the trial court will cause considerable damage, till it is reversed, which cannot be compensated.

Power to suspend conviction

A brief note on case law will strengthen this view:

Justice Arumugam has held in 1995 L.W.Crl 672 Jaganathan vs. state that the High Court has power to suspend the conviction. Though this case was reversed on facts by the Supreme Court, the latter has not doubted the power of the High Court to suspend conviction. In fact it has been observed in that case 1996(5) SCC 329 State of Tamil Nadu vs. Jagannathan approving the earlier view taken by the S.C. in 1995(2) SCC 513 Rama Narang case, to the effect that the High Court has power to suspend conviction. The Supreme Court has distinguished that case while applying to a public servant in service (especially a police officer) by stating ``In Rama Narang case, the conviction and sentences both were suspended, on the reasoning that if the conviction and sentence are not suspended the damage would be caused which would not be undone, if ultimately the revision of the appellants in that case was allowed. (Note: election cases can be viewed similarly). But in the present case... the damage, if any, caused to the respondents with regard to payment or stipend, etc., can well be revived and made good to the respondents''. Hence it was held considering the person and offence, the discretionary power should not have been exercised. Thus the Supreme Court in these two cases makes it clear that the High Court has discretionary power to suspend the conviction also.

The cases of public servants in service are different from a candidate contesting an election. On appeal being allowed the public servant can be reinstated, with back salary and promotions, continuity of service, etc. But if a candidate is stopped from contesting the election itself (remember he has to be elected, and sworn in to become a legislator, wherein the law can interfere), if the appeal is allowed later, can he be declared as an MLA or MP automatically? The damage caused cannot be compensated. Hence natural justice requires that conviction in such cases must be suspended.

Shukla's case

A similar situation arose in Vidyacharan Shukla's case AIR 1981 SC 574. But his nomination was accepted in spite of conviction. He was elected. On being challenged he was disqualified by the High Court. Meantime the criminal appeal filed by him was allowed. The Supreme Court held that the acquittal dates back to the date of conviction itself and the election was held valid and legal (though on the date of nomination his conviction was in force, and not even suspended).

In fact, the Supreme Court has not said the acceptance of the nomination was wrong. This is the correct view of the matter.

Hence it is clear at the stage of accepting nominations, there should not be any objection on the basis of convictions. Any contrary view is detrimental to democracy.

One decision of the Supreme Court is misquoted to support a contrary view. 1995(3)SCC 377 - it is not applicable to election cases. Even here Supreme Court has observed that ``If however the public servant is acquitted in the appeal or the proceeding, the order can always be revised (order of dismissal), and if the government servant is reinstated he will be entitled to all the benefits to which he would have been entitled in service.''

Here also they referred to the earlier Narang's case 1995(2) SCC 513. It has been observed ``S 389 of the Code of Criminal Procedure 1973, although empowers the appellate court to suspend the sentence or order appealed against, or to release the accused on bail, and does not expressly speak of suspension of conviction, still in certain situations the appellate court may also have the power to suspend the conviction.''

This is the law declared by the Supreme Court. Hence conviction can be suspended under Cr.P.C., or Constitution or any other legal provision to enable a candidate to file nomination. Even otherwise Shukla's case is a precedent for filing nominations even when the conviction is in force.

G. KRISHNAN

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